Trusts of Land

Question 1

What are those with concurrent interests entitled to?

Answer 1

Simultaneous enjoyment of the land

Question 2

What is an example of a concurrent interest?

Answer 2

Granting property to A and B in fee simple

Question 3

What are those with a successive interests entitled to?

Answer 3

Whenever land is not held for a fee simple absolute in possession or a term of years absolute

Question 4

What is an example of successive interests?

Answer 4

Granting of land ‘to A for life, remainder to B’

Question 5

Can a grant of land be both successive and concurrent?

Answer 5

Yes, an example would be granting land ‘to A for life, remainder to B and C in fee simple’

Question 6

What are the two circumstances where there a trust for sale where there are concurrent interests?

Answer 6

1. By the express creation of a trust for sale

2. By operation of statute (s36, joint tenancy - s34, tenancy in common)

Question 7

What is the essence in a trust for sale?

Answer 7

Trustees have a duty to sell the land which is usually coupled with a power (express or implied) to postpone the sale

Question 8

How can the power to postpone the sale be conveyed and where is this found in legislation?

Answer 8

Can be express or implied

s25(1) LPA 1925

Question 9

What happened in the case of Re Mayo?

Answer 9

If not all the trustees agree then the land has to be sold

Question 10

What power does s30 Law of Property Act give the court?

Answer 10

Gives the court the power to order or postpone a sale ‘as they see fit’

Question 11

What is the doctrine of conversion?

Answer 11

Regards the beneficiaries as having interests in money rather than the land (as if it has already been sold)

Question 12

How did TOLATA affect the doctrine of conversion?

Answer 12

s3 abolished the doctrine of conversion providing it is not personal property

Question 13

How do successive interests work in relation to trust of sale?

Answer 13

Unless the settlor expressly created an ‘immediate binding trust for sale’, successive interests automatically took effect as strict settlements under the Settled Land Act 1925

Question 14

What effect has TOLATA had on successive interests on trusts of land?

Answer 14

Strict settlements are still governed by the SLA however since s2 TOLATA no future strict settlements can be created

Question 15

What is a trust of land and where is it defined?

Answer 15

‘any trust of property which consists of or includes land’ s1(1)(a) TOLATA

Question 16

What does it mean if there is concurrent interest under TOLATA?

Answer 16

Whenever there are concurrent interests in land, there will now be a trust of land in 3 circumstances

Question 17

What is the first circumstance where there will be a trust of land in concurrent interests?

Answer 17

Where two or more persons become entitled to land as joint tenants or tenants in common

Question 18

What is the second circumstance where there will be a trust of land in concurrent interests?

Answer 18

Where a trust for sale with no duty to sell was already in existence before Jan 1997 by operation of statute

Question 19

What is the third circumstance where there will be a trust of land in concurrent interests?

Answer 19

Where there is an express trust for sale, whenever it was created, will have a duty to sell and power to postpones4 TOLATA

Question 20

What are the two exceptions where a strict settlement will still be in creation?

Answer 20

1. Automatic trust of land governed by TOLATA where successive interest in land are created from Jan 1997
2. Strict settlement created before Jan 1997 continued to be governed by the SLA

Question 21

What is a bare trust?

Answer 21

A trust to hold or manage the land for the sole benefit of one beneficiary who is of full age

Question 22

What happens between the beneficiary and trustees in a bare trust?

Answer 22

The trustee must obey the beneficiary’s instructions about the disposition of land. The beneficiary is therefore entitled to call for an outright conveyance of the legal estate to him which would end the trust.

Question 23

Where are the powers of trustees under a trust of land defined?

Answer 23

s6 TOLATA

Question 24

What are the powers of trustees under a trust of land defined in s6 TOLATA?

Answer 24

• In relation to land, all the powers of the absolute owner
• A power to convey the land to the beneficiaries where the beneficiaries are of full age and capacity and are absolutely entitled to the land
• A power to purchase land under the provisions of s8 Trustee Act 2000

Question 25

What restrictions are there on trustees powers?

Answer 25

- Trustees must have regard to the rights of the beneficiaries when exercising them - Powers cannot be exercised by the trustees in contravention of any other enactment or any rules of law or equity - Where the trustees are also authorised to act under some other statute, they cannot exercise their s6 powers in a way that would contravene any restrictions under that other statute

Question 26

What is the position of purchasers with unregistered land?

Answer 26

Purchasers of the land are under no obligation to check whether the trustees have regard to the rights of the beneficiaries

Question 27

Will the conveyance to the purchaser be invalid with regards to the contravention of statutory restrictions - s16(2) TOLATA?

Answer 27

Will not be invalidated so long as the purchaser does not have actual notice of the contravention

Question 28

What is the position of purchasers with registered land?

Answer 28

s26 Land Registration Act 2002 so long as there s no relevant restriction placed on the register, a purchaser is protected against limitations affecting the validity of a transaction.

Question 29

Under s8 TOLATA what is the exclusion of powers?

Answer 29

The settlor can exclude any of the trustee's powers except the power to postpone sale

Question 30

If the sale of land power is excluded can the land still be sold?

Answer 30

Yes the court may still have power to order that the land be sold under s57 Trustees Act 1925 where it considers the sale is 'expedient'

Question 31

What is consent to exercise the powers?

Answer 31

Creating a trust may require the consent of a person (usually a beneficiary) before the trustees powers are exercised.

Question 32

What happens if the consent of an infant is required?

Answer 32

The consent of his parent/guardian will be obtained

Question 33

Who is favoured when it comes to the position of the purchasers?

Answer 33

In favour of the purchaser of the land - an infants consent is not required (s10(3) TOLATA) - where the consent of two or more people are required, any two of them is sufficient (s10(1) TOLATA) - trustees under a duty to take all reasonable steps to inform the purchaser of any limitation of their powers - so long as there is no relevant restriction entered onto the register, a purchaser of registered land will be protected against any limitation

Question 34

Under what section will consultation with the beneficiaries normally be required?

Answer 34

s11(1)

Question 35

When should trustees consult the beneficiaries?

Answer 35

- consult the beneficiaries of full age who are beneficially entitled to an interest in possession - so far as consistent with the general interest of the trust, give the effect to the wishes of those beneficiaries, or the wishes of the majority in value

Question 36

What are the exceptions where there will be no duty to consult the beneficiaries?

Answer 36

- express trusts created after Jan 1997 which specify s11 is not to apply - express trusts created before Jan 1997, unless the settlor executes a deed providing that s11(1) is to apply - trusts arising under a will made before Jan 1997

Question 37

What is the position of the purchasers in unregistered land?

Answer 37

Purchasers are under no obligation to check whether consultation requirements have been satisfied

Question 38

What is the position of the purchasers in registered land?

Answer 38

So long as there is no relevant restriction entered on the register, a purchaser of registered land will be protected against irregularities affecting the validity of transaction

Question 39

What is the right to occupy?

Answer 39

s12 TOLATA states a beneficiary who is beneficially entitled to an interest in possession in the land is conditionally entitled to occupy the land at any time

Question 40

What conditions must the land be for the right to occupy arise?

Answer 40

- Available for his occupation | - Suitable for occupation by the beneficiary

Question 41

What is the trustees' powers to regulate the right to occupy?

Answer 41

Where two or more beneficiaries are entitled to occupy the land, the trustees have the power: - if reasonable to exclude or restrict the entitlement of any one or more of them - impose reasonable conditions on any beneficiary in relation to the exercise of the right to occupy - where one beneficiary's right to occupy has been excluded or restricted by the trustees, to require the occupying beneficiary to make payments by way of compensation to the ousted beneficiary

Question 42

What factors are relevant to exercise of power?

Answer 42

The trustees have regard inter alia to the factors set out in s13(4) TOLATA

Question 43

How can an application for a court order resolving disputes in relation to trusts of land be made under s14 TOLATA?

Answer 43

- Trustee of land | - Any person 'who has an interest in property subject to a trust of land `